Judge: Bush broke law with illegal wiretaps

By PAUL ELIAS
March 31, 2010

Former President George W. Bush

In a repudiation of the Bush administration‘s now-defunct Terrorist Surveillance Program, a federal judge ruled Wednesday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.

U.S. District Court Judge Vaughn Walker said the plaintiffs provided enough evidence to show “they were subjected to warrantless electronic surveillance.”

The judge’s 45-page ruling focused narrowly on Al-Haramain case, touching vaguely on the larger question of the program’s legality.

“By virtue of finding what the Bush administration did to our clients was illegal, he found that the Terrorist Surveillance Program was unlawful,” Eisenberg said.

At issue was a 2006 lawsuit filed by the Ashland, Ore., branch of the Saudi-based Al-Haramain Islamic Foundation and two American lawyers Wendell Belew and Asim Ghafoor.

Belew and Ghafoor claimed their 2004 phone conversations with foundation official Soliman al-Buthi were wiretapped without warrants soon after the Treasury Department had declared the Oregon branch a supporter of terrorism. They argued that wiretaps installed without a judge’s authorization are illegal.

It was the last active case pending before a trial judge challenging the wiretapping program that ended in 2007.

“The ruling ends the case, but without the fireworks everyone expected,” George Washington University law professor Orin Kerr said. “It ended with a whimper.”

The plaintiffs were seeking $1 million each, plus attorney fees in the case. Walker ordered more legal arguments before deciding on possible damages.

The ruling came after U.S. Attorney General Eric Holder said the lawsuit threatened to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration’s position on the case but insisted it came to the decision differently.

Holder’s effort to stop the lawsuit marked the first time the administration has tried to invoke the state secrets privilege. Under the strategy, the government can have a lawsuit dismissed if hearing the case would jeopardize national security.

Holder said Judge Walker had been given a classified description of why the case must be dismissed so the court could “conduct its own independent assessment of our claim.”

That was a departure from the Bush administration, which resisted providing specifics to judges handling such cases about what the national security concerns were.

Holder previously said the administration would respect the outcome of Walker’s review.

Eisenberg called on the Obama administration to accept Wednesday’s ruling and forgo any appeals.

President Bush authorized the surveillance program shortly after 9/11, allowing National Security Agency officials to bypass the courts and intercept electronic communications believed connected to al-Qaida.

Generally, government investigators are required to obtain search warrants signed by judges to eavesdrop on domestic phone calls, e-mail traffic and other electronic communications.

In June, Judge Walker tossed out more than three dozen lawsuits against the nation’s telecommunications companies for allegedly taking part in the program.

Congress in 2008 agreed on new surveillance rules that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.

Walker previously upheld the constitutionality of the new surveillance rules. His ruling is being appealed.

Anthony Coppolino, the U.S. Department of Justice lawyer who has been in charge of the Islamic Foundation case under both administrations, has never addressed the legality of the wiretap program.

Coppolino has always argued the case should be tossed out in the name of national security and said the government risked exposing ongoing intelligence work if the lawsuit were allowed to proceed.

The government argued that its “state secret privilege” trumped the Foreign Intelligence Surveillance Act, known as FISA, which requires investigators to seek wiretap approval from a special court that convenes behind closed doors.

Coppolino refused to even discuss whether such a secret warrant existed, arguing that to confirm or deny would threaten national security.

On Wednesday, the judge said the government was wrong and ruled that it should be assumed investigators lacked a warrant.

“FISA takes precedence over the state secrets privilege in this case,” Walker wrote.

The Bush administration invoked the secrets privilege numerous times in lawsuits over various post-9/11 programs.

In another wiretap case targeting the Bush tactics, the Center for Constitutional Rights asked the U.S. Supreme Court Tuesday to order government officials to disclose if officials eavesdropped without warrants on electronic conversations between 23 attorneys and their clients held at Guantanamo.

Lower courts had tossed out that request.

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5 Responses to Judge: Bush broke law with illegal wiretaps

Carl Nemo

March 31, 2010 at 10:13 pm

“The government argued that its “state secret privilege” trumped the Foreign Intelligence Surveillance Act, known as FISA, which requires investigators to seek wiretap approval from a special court that convenes behind closed doors.The State Secrets Privilege is an evidentiary rule created by United States legal precedent. The court is asked to exclude evidence from a legal case based solely on an affidavit submitted by the government stating court proceedings might disclose sensitive information which might endanger…” extract from article

These guys must have received their law degrees via correspondence courses along with the BAR exam waived. / : |

The more you hear of our government hiding behind so-called “state secrets privilege” etc. you’d think we were now part of Great Britain which has such a law concerning such classed secrets. Also Britain has become one of the premier examples of the surveillance state over their citizens in these times, actualizing George Orwell’s “1984” to the nth degree.

The big problem with this ruling is that it’s a day late and a dollar short relative to where we now find ourselves as a nation with evermore bricks having been troweled into the walls of our NWO electronically monitored, uber secretive pro-statist prison once known as the USA; all under our current ‘dear leader’ … / : |

*****

“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” … Justice Louis Brandeis

*****

Carl Nemo **==

Bill

March 31, 2010 at 10:32 pm

Right on. I’m living in Viet Nam–a place where people are afraid to challenge the government, and accept what they say and then go do whatever they want. There are, I just found out, real driving laws and rules–it is just that nobody obeys any of them. Red lights are ignored, people drive the wrong way on a one way street, people drive on the sidewalk in both directions, and if you get knocked down on your motorbike you had best hope that there isn’t a bus or taxi behind you because they probably won’t stop–and nobody will stop to help you.

So laws that are ignored are worth nothing, and if we the people don’t stand up and voice our discontent, and if necessary, revolt, we will be boxed and stepped on until we are the same automatons found in Orwell’s 1984.

It is easy to preach revolution when you are old and comfortable in a foreign land, but things were a lot more fun in the 60’s when we had the guts and energy to DO rather than preach.

woody188

March 31, 2010 at 11:15 pm

the Bush administration’s now-defunct Terrorist Surveillance Program

Did Obama’s administration re-name the program when they expanded it?

Carl Nemo

March 31, 2010 at 11:52 pm

Nah Woody, they just don’t acknowledge TSP while still going full steam ahead; ie., business as usual.

Referencing TSP as being defunct is just disinformation for the unwashed masses.

That’s why this ruling is a joke because it’s dealing in the “past”, not the present and what’s going forward. / : |

Carl Nemo **==

b mcclellan

April 3, 2010 at 11:49 pm

I’ve been waiting as you know for war debate.
How are wars won ?
Find the good Guys yet ?
Duh, george ,……their all bad.

If pro-con matters not, ere we do not discuss it now,
who will ?

It is as the sound of Labeb,
the song of war, so melodic these days, orchestras of peace are drowned out, and settle as red dust in foreign lands.

Is not every soldier a symphony unto his own life ,and should we restrain forcefully ourselves of this juxtaposition of our youth ?